THEY CHANGED THE RULES AGAIN!

The Judicial Council recodified rules 30 through 38, concerning criminal appeals. The amendment to the Rules of Court are effective January 1, 2004. Most of the rule changes simply require appellate counsel to be careful to update citations to the rules in model briefs and motions, but there are a few substantive changes.

* Briefs are now limited to 25,500 words unless the court grants an application for a longer brief. Counsel must certify under penalty of perjury that briefs are no longer than 25,500 words. (New rule 33(b).)

* Criminal defendants may now file a simpler petition for review, which raises no grounds for review, solely to exhaust state remedies for the purpose of preparing a federal habeas corpus petition. (New rule 33.3.)

* Only 10 copies of a petition for original writ (e.g., state habeas corpus petition) need to be filed in the state Supreme Court. (New rule 44(b)(1)(C).) The rules continue to require 13 copies of a petition for review must be filed (new rule 44(b)(1)(A)), but only 8 copies of a rule 33.3 petition need to be filed (new rule 44(b)(1)(E)).

Notice of appeal and statement of appealability: Old rule 31, concerning a notice of appeal, is now rule 30. This is important because in cases where the defendant pled guilty or no contest, most people have referred to old rule 31(d) in the notice of appeal and in the statement of appealability. New rule 30(b)(1) now requires a certificate of probable cause to challenge the validity of the plea, and new rule 30(b)(4) permits appeals following a plea on grounds arising after the entry of plea or from a motion to suppress evidence.

New rule 30(a)(2) defines more clearly which criminal cases are appealable to the court of appeal. New rule 30.3 replaces without substantive change old rule 38 concerning the abandonment of an appeal.

Record on appeal: Old rule 33 has been replaced by new rule 31 in describing the normal record on appeal. Rule 32.1(b) now permits counsel to notify the superior court when something is missing from the normal record. Thus, the venerable rule 35(e) letter is now a rule 32.1(b) letter - just does not have the same ring to it.

New rule 32.1(d) now provides the authority for augmenting the record. The rule generally refers to rule 12. New rule 31.2 now describe how to handle confidential information in the record, such as transcripts from a Marsden hearing.

Briefs: Briefs in criminal cases, including reply briefs, are now limited to 25,500 words and each brief must be accompanied with a certificate in which counsel declares under penalty of perjury that the brief is less than 25,500 words. (New rule 33(b).) Counsel may still file an application in the court of appeal for permission to file a longer brief. (New rule 33(b)(5).) The deadlines for filing the briefs are the same. (See new rule 33(c).) New rules 16 and 33(e) describe the procedure for when both the prosecution and defendant appeal.

Proofs of service: New rule 33(d) describes who must be served with a brief. New rule 44.5 describe when the Attorney General must be served which includes, of course, criminal cases. It also includes any civil appeal which challenges the constitutionality of a statute or when the state or a governmental subdivision is a party. However, the Attorney General is not served in dependency cases. (Amended rule 39.1(d).)

Rehearing petitions: A party can no longer file an answer to a rehearing petition as a matter of right. Instead, an answer can be filed only by invitation of the court of appeal. The court should provide an opportunity to file an answer before granting rehearing. (Amended rule 25(b)(2).) Further, if one misses the deadline for filing a petition for rehearing, relief from default is now possible if the petition is filed before the opinion become final (amended rule 25(b)(4)), which normally occurs 30 days after the opinion was issued.

Petitions for review: New rule 33.3 permits counsel to file a petition for review merely to exhaust state remedies for a federal habeas petition. The cover must clearly state it is a "Petition for Review to Exhaust State Remedies." (New rule 33.3(b)(1).) There need not be a statement of issues presented for review or an argument stating grounds for review. (New rule 33.3(b)(3).) Instead, the petition must include a statement that the case presents no grounds for review and the petition is filed solely to exhaust state remedies for the purpose of preparing a federal habeas corpus petition. (New rule 33.3(b)(3)(A).) The petition still must contain a statement of facts and procedure and an argument with the factual predicate and legal authority for each claim. (New rule 33.3(b)(3)(B) & (C).) Although this has sometimes been referred to as an "abbreviated petition for review," it is still important to properly exhaust all federal claims by stating the factual predicate and the federal case law or federal constitutional provisions that control. (Gray v. Netherland (1996) 518 U.S. 152, 162-163.)

We at SDAP have noticed that many practitioners have failed to comply with rule 28.1(b)(3), effective in 2003, which requires counsel to state either that a petition for rehearing was not filed or that one was filed with a description of the decision on the rehearing petition. Counsel must comply with this requirement even in federal exhaustion review petitions. (See new rule 33.3(b)(2).) A federal exhaustion review petition need not be served on the superior court (new rule 33.3(c).) The original and only eight copies need to be filed in the Supreme Court. (New rule 44(b)(1)(E).) Although appellate counsel normally should file a petition for review to exhaust all federal claims raised on appeal, if you decide not to file a petition for review and there are federal claims made on appeal, you should modify your standard letter to the client explaining the procedure under new rule 33.3.

A reply to opposition to a petition for review is no longer limited to new issues raised in the opposition. (See old rule 28.1(d).) Rule 44(b) was amended to require only 13 copies of briefs on the merits (instead of 14) in the Supreme Court. (Rule 44(b)(1)(B).)

Habeas corpus petitions: Rule 56.5 was amended to require exhibits to comply with rule 56(d). Further, only ten copies of a petition for a writ must be filed in the Supreme Court. (Rule 44(b)(1)(C).)

The time for the superior court to rule on a habeas corpus petition has now increased from 30 days to 60 days. (Rule 4.551(a)(3)(A).) After 60 days, it is incumbent on the petitioner to file a request for a ruling. (Rule 4.551(a)(3)(B).)

Juvenile cases: Rule 1423(b) was amended to make it clear that trial counsel and appellate counsel representing a party in a juvenile case has the right to inspect juvenile court files. Rule 39.1(d) was amended to make it clear that in appeals from the termination of parental rights, county counsel must serve a copy of the brief on the appellate project and two copies to the attorney representing a party on appeal.

December 2, 2003

View the new rules.




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